### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17

- 2480
N ANETTE T UCKER , Plaintiff

- Appellant ,

v.

C ITY OF C HICAGO , et al. , Defendants

- Appellees

.

____________________ Appeal from the United States District Court for the Northern District of Illinois , Eastern Division. No. 1: 16

- cv

- 01894

— Robert M. Dow, Jr. , Judge

.

____________________
A RGUED S EPTEMBER 17, 2018

— D ECIDED O CTOBER 19, 2018

____________________

Before E ASTERBROOK , K ANNE , and B RENNAN , Circuit Judges

. B RENNAN , Circuit Judge

. Does a six month delay between a property inspection and notice of a municipal ordinance citation violate due process? Th e district court said no, dismissing plaintiff

- appellant Nanette Tucker ’s amended complaint for fail ure to state a procedural due process claim under 42 U.S.C. § 1983

. It also r ejected her alternative theory that the C ity of Chicago misinterpret ed the ordinance’s plain text

.2 No. 17

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We af firm

. The administrative and judicial proceedings

a vailable for T ucker to challenge her citation satisfied due process, and the accuracy of the city’s interpretation of its ordinance does not implicate the U.S. Constitution

. GivenTucker’s failure to allege facts supporting a plausible violation of her due process rights, dismissal under Federal Rule of Civil Procedure 12(b)(6) was appropriate.
I. B ACKGROUND 1 Chicago sells vacant real estate to local residents for $1 per lot through its “Large Lot Program

. ” 2 As the city council explained , “Many of the City

- owned parcels are of minimal value, yet are costly for the City to clean up and maintain.” C HI

. M UN

. C ODE § 2

- 157

- 010

. Under th e program , in February 2015, Tucker purchas e d a vacant lot on her neighborhood block , intending to convert it into a community garden. Defendant Sonya Camp bell work s as a n inspector for Chicago’s Department of Streets and Sanitation. On June 3, 2015, she inspected Tucker’s property and concluded it s vegetation

v iolated the city’s yard weed ordinance, C HI

. M UN

. C ODE § 7

- 28

- 120(a) , which provides:

1 These facts come from Tucker’s amended complaint and the certified administrative record of the Chicago Department of Administrative Hearings . As the district court noted, matters of public record

— such as a public administrative hearing

— may be judicially noticed without converting a motion to dismiss into one for summary judgment. F ED

. R. E VID . 201(b); see also Ray v. City of Chicago , 629 F.3d 660, 665 (7th Cir. 2011).

2 See Amendment Adding New Chapter 157 Establishing Large Lot Program, Chi. City Coun. Rec. No. O2014

- 9405 (Dec. 10, 2014) , https://chicago.legistar.com/L egislation.aspx (search record number O2014

- 9405 ).No. 17

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Any person who owns or controls property within the city must cut or otherwise control all weeds on such property so that the average height of such weeds d oes not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200. Each day that such violation continues shall be considered a separate offense to which a separate fine shall apply.

Du ring Campbell’s inspection, she t ook two p hotograph s of the lot from the street to de pict the overgrown vegetation

. No citation s or notices regarding Campbell’s inspection or i t s results were posted at the property. Six months later, o n December 4, 2015, another city employee served Tucker ( via first class mail ) with a citation for the alleged June 3 violation. The citation included a certification by Campbell and the d escription , “Weeds are greater than 10 inches in height.” It also no tified Tucker she c ould appear at a hearing before the end of the month to contest the violation in front of an administrative law judge

. 3 Tucker, represented by counsel, attend ed the hearing. The city ’s case

- in

- chief c onsisted of the citation and inspector Campbell’s two photographs

. Tucker ’s counsel mov ed to dismiss the citation, claiming the city failed to present evidence of the “average height” of the weeds. The adm inistrative law judge denied th at motion, spurring Tucker’s counsel to raise a s eries of constitutional challenges to the ordinance

3 Under Illinois law, 65 I LL

. C OMP

. S TAT

. 5/1

– 2.1

– 2 (1998) , municipalities may create an administrative adjudication system for ordinance violations, which Chicago has done. C HI

. M UN

. C ODE § 2

- 14

- 010 (2012)

.4 No. 17

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and it s enforcement by the city. The administrative law judge stated he was not authorized to rule on any constitutional
matters , but permitted T ucker’s counsel to make a record for purposes of appeal

. N ext , Tucker took the witness stand and testif ied she made it her practice to have the property “cut and cleaned” every other week. She stat ed she passes her lot every day but has n ever seen vegetation greater than an average of ten inches , and no neighbors have ever complained about it s condition. Beside s her own testimony, Tucker presented no other evidence to the administrative law judge. After argument s from counsel, the administrative law judge ruled in favor of the city and imposed a $640 fine against Tucker

. Tucker could have appealed th e fine to the Circuit Court of Cook County , 4 but instead she paid it “under protest

. ” That same day, she filed this putative cla ss action, alleging 42 U.S.C. § 1 983 claim s against Campbell ( in her indi vidual capacity ) and the city (pursuant to Monell v. Dep’t of Soc. Servs. of New York , 436 U.S. 658 (1978)) , as well as a “ failure

- to

- train ” clai m against the city.
After t he defendants filed a Rule 12(b)(6) motion , the district court dismissed Tucker’s original complaint but g ranted her leave to re

- plead. Tucker file d an amended complaint, but the district court dismissed that as well , ruling the facts alleged failed to state a plausible claim that the defendants

4 A n administrative law judge’s decision is appealable to Illinois’s circuit courts under the Illinois Administrative Review Law. C HI

. M UN

. C ODE § 2

- 14

- 102 (1998); 65 I LL

. C OMP

. S TAT

. 5/1

– 2.1

– 7 (1998) ; 735 I LL

. C OMP

. S TAT

. 5/3

– 104 (1994)

.No. 17

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deprived Tucker of due process. Rather than amend her complaint yet again , Tucker chose to pursue this appeal.
II. A NALYSIS
We review de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss, accepting as true all well

- pleaded facts and drawing all reasonable infe rences in the plaintiff’s favor. Forgue v. City of Chicago , 873 F.3d 962, 966 (7th Cir. 2017). Section 1983 claims are subject to the same plausibility pleading standard as other civil causes of action. See, e.g., McCauley v. City of Chicago , 671 F.3d 611, 616 (7th Cir. 2011).
The two elements of a procedural due process claim are

“ (1) deprivation of a protected interest and (2) insufficient procedural protections surrounding that deprivation. ” Michalowicz v. Vill

. of Bedford Park , 528 F.3d 530, 534 (7th Cir. 2008) (citation omitted)

. Here , t he parties agree the fine depriv ed Tucker of a protected property interest. At issue is whether the facts she alleged plausibly demonstrat e constitutionally de ficient procedural protections

. A. Availability of Post

- Depri vation Relief in State Court Before reaching Tucker’s main contentions , we reject her

a rgument that the district court erred in considering her appeal rights under Illinois law. Relying on Zinermon v. Burch , 494 U.S. 113 (1990) , and Parratt v. Taylor , 451 U.S. 527 (1981), Tucker contends post

- deprivation remedies may be considered only where the deprivation is the resu lt of “random and unauthorized” acts by individual government agents

. Tucker’s argument mischaracteriz es the rule laid down in Parratt and d istinguished in Zinermon

.6 No. 17

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In Parratt , the Supreme Court held the government did not offend due process by failing to provide an inmate with a hearing before prison officials inadvertently lost his property in the mail . S uch a hearing would have been impos sible to schedule given it was the result of a “random and unauthorized act

. ” 451 U.S. at 54 1

– 44. Parratt explained that the general preference for a pre

- deprivation hearing does not control where the government is unable to foresee the deprivation and pro vides adequate post

- deprivation remedies. Id. at 544. By contrast, the Court in Zinermon ruled state tort remedies insufficient because the government could have foreseen that holding a hearing before committing a person t o a mental health facility would avoid erroneous commitment s . 494 U.S. at 13 6

– 3 7

. These cases address whether post

- deprivation remedies standing alone satisfy due process, in the absence of any pre

deprivation hearing. Here , Tucker received both a pre

- deprivation hearing a nd an avenue to seek post

- deprivation relief through judicial review

. While Parratt hold s that post

- depriv ation remedies may be sufficient if the deprivation is “random and unauthorized,” neither Parratt nor Zinermon stands for the proposition that post

- deprivation remedi es are otherwise irrelevant to a procedural due process claim

. Rather , the adequacy of pre

- deprivation proceedings may turn on the availability and nature of post

- deprivation remedies. See Parratt , 451 U.S. at 541 (noting precedents excusing pre

- deprivation hearings “have rested in part on the availability of some meaningful opportunity subsequent to the in i tial taking for a determination of rights and liabilities”); see also Michalowicz , 528 F.3d at 536

– 37 (“[W]hen adequate post

termination proceedings exist, a pretermination hearing needNo. 17

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only provide an initial check against mistaken decisions

... . ”) ( quotation omitted)

. As Tucker points out , a plaintiff need not exhaust her remedies through sta te agencie s or courts before bringing a § 1983 claim. Veterans Legal Def. Fund v. Schwartz , 330 F.3d 937, 941 (7th Cir. 2003). But that is not to say post

- deprivation remedies are irrelevant to a procedural due process claim. Id

. (noting that the ”whole id ea of a procedural due process claim is that the plaintiff is suing because the state failed to provide adequate remedies”); see also Dusanek v. Hannon , 677 F.2d 538, 543 (7th Cir. 1982) (“[A] state cannot be held to have violated due process requirements when it has made procedural protection available and the plaintiff has simply refused to avail himself of them.”). Indeed, a plaintiff who foregoes her right
to pursue post

- deprivation remedies available under state law faces a high hurdle in establishing a due process violation

. See Simmons v. Gillespie , 712 F.3d 1041, 1044 (7th Cir. 2013) (“The due process clause does not permit a litigant to disdain his opportunities under state law and then demand that the federal judiciary supply a remedy.”). Such remedies go directly to the question whether a plaintiff has been afforded due process of law

. T h us, th e district court was
correct to consider Tucker’s right to pursue judicial review in state court

. B. Delay Theory

Now w e turn to Tucker’s primary argument that the city’s six month delay in notifying her of the yard weed citation denied her due process

. Tucker does not dispute that she received a hearing, in which she was represented by counsel, presented evidence in8 No. 17

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her defense, and made legal arguments

. On its face, such ahearing embodies the “fundamental requirement of due process.” Mathews v. Eldridge , 424 U.S. 319, 333 (1976); see also Pugel v. Bd. of Tr. o f Univ. of Ill. , 378 F.3d 659, 662 (7th Cir. 2004) (“The hallmarks of procedural due process ar e notice and an opportunity to be heard.”).

R ecognizing this, Tucker frames her claim as “a prehearing denial of due process.” (Appellant’s Br ief at 17 (emphasis added). ) Yet this theory suffe rs from a fundamental flaw : the city did not deprive Tucker of anything until the December 29, 2015 hearing in front of the administrative law judge

. Before then, the city had simply issued her a citation. Only at the hearing did the administrative law judge consider the parties’ evidence, adjudicate the city’s allega tion , and i mpose
a fine. A plaintiff c annot be deprived of property without due process of law before that plaintiff i s deprived of property. See DeHart v. Town of Austin , 39 F.3d 718, 724 (7th Cir. 1994) (due process claim held premature because no depriv ation had occurred yet); see also Lawshe v. Simpson , 16 F.3d 1475, 1478

– 80 (7th Cir. 1994) (due process claim accrues upon actual deprivation not notice of threatened deprivation)

. Therefore, the delay between Campbell’s inspection and the citation is relevant only to whether the hearing itself was constitutionally adequate. T he delay alone does not constitute a due process violation. Supreme Court precedent provides that statutes of limitation are the primary line of defense against prosecutorial delay , Betterman v. Montana , 136 S. Ct. 1609, 1613 (2016) , but Chicago’s yard weed ordinance does not have one. Discount Inn , Inc. v. City of Chicago , 803 F.3d 317, 327 (7th Cir. 2015)No. 17

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(rejecting constitutional challenge to Chicago weed and fencing ordinances bas ed on lack of limitations period).
Yet the Supreme Court has also held that d ue process has “a limited role to play in protecting against oppressive delay.” United States v. Lovasco , 431 U.S. 783, 789 (1977). Such violations occur only where the delay “vi olates those fundamental conceptions of justice which lie at the base of our civil and political institutions

... and which define the community’s sense of fair play and decency.” Id. at 790 (quotation s omitted). An accused must demonstrate “actual and subst antial prejudice , ” at which point the burden shifts to the government to show the reason for its delay was not imp roper

. United States v. Henderson , 337 F.3d 914, 920 (7th Cir. 2003); see also United States v. Sowa , 34 F.3d 447, 450

– 51 (7th Cir. 1994) (dis cussing burden shifting ). To demonstrate actual and substantial prejudice , “[I] t is not enough to show the mere passage of time nor to offer some suggestion of speculative harm; rather, the defendant must present concrete evidence showing material harm.” Wilson v. McCaughtry , 994 F .2d 1228, 1234 (7th Cir. 1993) ( quot ation omitted )

. Tucker ass erts the city’s delay caused her prejudice in that she was unable “ to make any measurements of the average height of the vegetation on her lot at or near the time of inspection ” or to use “photographs taken contemporaneously with th e date of the alleged violation

. ” (Am ended Compl aint ¶¶ 29, 64.) S uch allegations do not plausibly demonstrate actual and substantial prejudice. Every prosecution necessarily occurs after th e alleged violation. Many defendants wish they had access to non

- existent , contemporaneous evidence to use in their defense, but this “does not render the hearing meaningless” for purposes of due process

. Cochran v.10 No. 17

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Illinois State Toll Highway Auth. , 828 F.3d 597, 601 (7th Cir. 2016 )

. As th is court has recognized, “D ue process does not require notice

- on

- demand but rather timely notice , and a one month delay in receiving notice does not offend due process.” Id. at 601. Although the delay in this case is si x months, it is still considerably shorter than prosecutorial delays accepted in other contexts

. See, e.g., United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency , 461 U.S. 555, 569

– 70 (1983) (18 month delay in i nitiating forfeiture proceedings did not violate due process); Wilson , 994 F.2d at 1234

– 36 (deaths of potential witnesses during a 16 year delay

were insufficient to demonstrate substantial prejudice) ; Sowa , 34 F.3d at 449

– 5 2 (no due process violation desp ite four year delay in bringi ng federal hate crime prosecution). And t he interest at stake here is monetary, less significant than (for example) one’s liberty int erest in a criminal prosecution , or
eve n property interest in continued employment

. See Clancy v. Office of Foreign Assets Control , 559 F.3d 595, 600 (7th Cir. 2009)

. Substantial prejudice hardly arises more quickly for a municipal ordinance citation than felony prosecutions. Accepting Tucker’s prejudice argument would place a
near instantaneous no tice mandate on the city. Even if Tucker received her citation the day after Campbell’s inspection and quickly p hotograph ed her yard from her preferred angles, such evidence would be less probative tha n photographs
t aken on the day of the alleged violation , as the weeds could have withered or been cut

. Moreover, the issue is not whether it might be “ helpful ” if alleged violators were provided with notice more quickly, but whether the existing procedures “present an unreasonableNo. 17

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risk of an erroneous deprivation.” Clancy , 559 F.3d at 600. A s the district court highlighted, Tucker was still permitted to testify on her own behalf and present whatever existing evidence she wanted. S he was free to impeach the city’s photograph s to illu strate any alleged deficiencies. Although it is conceivable that Tucker may have been able to mount a better defense had she known immediately of the June 3 citation, the hearing she received did not present an unreasonable risk of an erroneous deprivation

. Id. at 601 ( holding that “pre

- penalty notice of the basis for [a] charge, the underlying facts, and an opportunity to respond” is an “appropriate procedure” for mitigating the risk of an erroneous deprivation).

Because Tucker has neither point ed us to any authority suggesting that law enforcement must initi ate a prosecution immediately , n or demonstrated actual and substantial prejudice , she has failed to plausibly allege a due process claimbased on the six months between the inspection of her property and issuance of the citation

. C. “Misenforcement” Theory
Tucker also argues the defendants maintain a policy of misinterpreting (or “misenforcing , ” as Tucker puts it) the city’s yard weed ordina nce. She asserts the city incorrectly asks its inspectors to determine only whether some weeds exceed ten inches, while the plain text of the ordinance requires that “the average height” of the offending weeds exceed ten inches.

But an alleged mis interpr etation of a municipal ordinance do es not implicate the U.S. Constitution. See He r bert v. Louisiana , 272 U.S. 312, 316

– 17 (1926) ( “ The due process of law clause in the Fourteenth Amendment does not take up the12 No. 17

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statutes of the several states and make them the test of what it requires

... . ” ); Snowden v. Hughes , 321 U.S. 1, 11 (1944) (“ Mere violation of a state statute does not infringe the federal Constitution .”); Swarthout v. Cooke , 562 U.S. 216, 221

– 22 (2011) ( same ) ; Archie v. City of Racine , 847 F.2d 1211, 1217 (7th Cir. 1988) (“ A state ought to follow its law, but to treat a violation of state law as a violation of the Constitution is to make the federal government the enforcer of state law. ”). Interpretation of state or local law is a question of legal su bstance, not process. A litigant is not deprived of du e process merely because

a local law enforcement agency does not agree with her legal interpretation. Simmons , 712 F.3d at 1044 ( “[T]he federal entitlement is to process, not to a favorable outcome.”)

. As t his court stated in Kompare v. Stein , 801 F.2d 883 (7th Cir. 1986) : The constitutionality of the defendant’s conduct cannot be determined by looking to a municipal ordinance. Section 1983 only creates a federal cause of action against those acting under color of state law who cause a deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the Unit ed States

.

... Violations of state statutes or municipal ordinances do not necessarily give one a cause of action under § 1983, nor do they necessarily state a violation of the due process clause.
Id. at 888 (quot ations and emphasis omitted )

. Even assuming Tucker is right that the city’s interpretation of its ordinance is i ncorrect, federal due processNo. 17

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protection is not a guarantee that state governments will apply their own laws accurately. Simmons , 712 F.3d at 1044 (“The Constitution does not require states to ensure that their laws are implemented correctly.”); see also Coniston Corp. v. Vill

. of Hoffman Estates , 844 F.2d 461, 467 (7th Cir. 1988) (holding that

a village board’s alleged misapplication of a municipal zoning ordinance did not present a due process concern ). Were the rule otherwise, federal courts would sit effectively as appellate tribu nals ov er ever y state proceeding. See Gryger v. Burke , 334 U.S. 728, 731 (1948) ( “We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on state law would come here as a fed eral const itutional question.” )

. If Tucker believe d the administrative law judge’s interpretation of the ordinance wa s legally incorrect, she could have appeal ed her fine to Illinois’s state courts. H er amended complaint makes no attempt to establish the inadequacy of
t hat avenue of redress. Michalowicz , 528 F.3d at 535 ( noting that a plaintiff must demonstrate that the existing state law remedy is “inadequate to the point that it is meaningless or nonexistent” )

. Without such factual allegations, the distr ict court c orrect ly reject ed Tucker’s “misenforcement” theory. Finally, Tucker acknowledges that her “ failure

- to

- train ” claim against the city is “not a free

- standing claim” and depends on the viability of her theories discussed above, so
we need not addr ess it separately . And because we agree with the district court that Tucker failed to plead any plausible due process violation , it is unnecessary to reach the district court’s decision regarding Campbell’s qualified immunity defense.14 No. 17

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III. C ONCLUSION Although a six month delay between inspection and citation m ay not be a model of ad ministrative efficiency, the delay in this case did not violate the Constitution. Similarly, the proper interpretation of a municipal ordinance is a matter of local law for state courts to decide, not constitutionally required procedure.
A FFIRMED

.